Stennet v. StateStennet v. State
Chinda Urbina Stennet, the appellant, was indicted for the attempted murder of Vicki Pearson. The jury found her guilty of the lesser included offense of attempted manslaughter. The trial judge set sentence at ten years’ imprisonment in the penitentiary.
On the evening of April 19, 1988, an argument ensued between the appellant and Vicki Pearson at Pearson‘s trailer. At some point, the appellant left Pearson‘s trailer. A short time later, the appellant returned to Pearson‘s trailer and fired a shotgun twice at the trailer. Although no one was injured by the shots, numerous shotgun pellets hit Pearson‘s trailer.
The sole issue raised by this appellant is whether the trial judge erred by failing to instruct the jury on the offenses of attempted assault in the second degree and reckless endangerment. We agree that the trial judge should have instructed the jury on the offense of reckless endangerment. The trial judge erroneously instructed the jury on the offense of attempted manslaughter, since we find that attempted manslaughter is not an offense in this state.
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Numerous other courts have considered this question and have also found that there is no such offense as attempted manslaughter. See People v. Zimmerman, 46 A.D.2d 725, 360 N.Y.S.2d 127, 128 (1974) (“An attempt is an intentional act. Manslaughter . . . is a reckless act. One may not intentionally attempt to cause the death of another human being by a reckless act.“); People v. Jackson, 49 A.D.2d 680, 370 N.Y.S.2d 739 (1975); People v. Brown, 21 A.D.2d 738, 249 N.Y.S.2d 922, 923 (1975) (“There must be an intent to commit a specific crime in order to constitute an attempt. An attempt to commit manslaughter is apparently a contradiction because the specific crime of manslaughter involves no intent and, accordingly, an intention to commit a crime whose distinguishing element is lack of intent is logically repugnant.“); State v. Johnson, 103 N.M. 364, 707 P.2d 1174, 1178 (N.M.App. 1985) (“The crime of attempt . . . is a specific intent crime. In comparison, the underlying crime of [manslaughter] does not require specific intent to kill. Indeed, it expressly excludes a specific intent to kill.“); Commonwealth v. Hebert, 373 Mass. 535, 368 N.E.2d 1204, 1206 (1977) (“An attempt to commit a crime necessarily involves an intent to commit that crime. Involuntary manslaughter is homicide unintentionally caused. Hence an attempt to commit involuntary manslaughter is logically impossible.“); Rhode v. State, 181 Ind. App. 265, 391 N.E.2d 666, 669 (1979) (“Indiana has no statutory crime of attempted reckless homicide.“); State v. Melvin, 49 Wis. 2d 246, 181 N.W.2d 490, 492 (1970) (“one cannot attempt to commit a crime which only requires reckless conduct and not a specific intent“); Hull v. State, 553 S.W.2d 90, 94 (Tenn.App. 1977) (“one may not be guilty of an attempt to commit involuntary manslaughter” since there is “no such crime as would require proof that one intended a result that accidentally occurred“); Bailey v. State, 100 Nev. 562, 688 P.2d 320, 321 (1984) (crime of attempted involuntary manslaughter does not exist because “it is logically impossible to attempt to commit an unintentional act“); State v. Howard, 405 A.2d 206, 212 (Me. 1979) (“Because of the discrepancy in culpable mental states between criminal attempt on the one hand and manslaughter on the other, the proffered crime of ‘attempted manslaughter’ is a logical impossibility.“); Gonzales v. State, 532 S.W.2d 343, 345 (Tex.App. 1976) (attempted involuntary manslaughter is a “contradiction in terms“); State v. Almeda, 189 Conn. 303, 455 A.2d 1326 (1983) (attempted manslaughter is not a crime cognizable under Connecticut law); People v. Hernandez, 44 Colo. App. 161, 614 P.2d 900 (1980); People v. Broussard, 76 Cal.App.3d 193, 142 Cal.Rptr. 664 (1977); Merritt v. Commonwealth, 164 Va. 653, 180 S.E. 395 (1935); Commonwealth v. Griffin, 310 Pa. Super. 39, 456 A.2d 171 (1983); State v. Zupetz, 322 N.W.2d 730 (Minn. 1982) (“it seems illogical that someone could intend to cause someone else‘s death through negligence or even recklessness” because while “[o]ne may reasonably conclude that [the defendant] intentionally behaved in a reckless manner” and “may have intended to kill [the victim],” even so “it makes no sense to say that he intended to kill her by being reckless“).
“Recklessness and negligence are incompatible with desire or intention. Where, therefore, in a crime which by definition may be committed recklessly or negligently but not intentionally, the recklessness or negligence relates not to a pure circumstance but to a consequence, it is impossible to conceive of an attempt. Thus there can be no attempt to commit involuntary manslaughter. The consequence involved in that crime is the death of the victim and an act done with intent to achieve this, if an attempt at all, is attempted murder.”
Smith, Two Problems in Criminal Attempts, 70 Harv.L.Rev. 422, 434 (1957).
Likewise, under Alabama law, if a person attempts to cause, recklessly or otherwise, the death of another person, that person is guilty of attempted murder. This is because
We need not decide whether the trial judge erred by failing to instruct the jury on the offense of attempted second degree assault. There are four subsections enumerated under
However, defense counsel properly requested an instruction on the offense of reckless endangerment, and we find that the trial judge erroneously refused to give that charge. A person commits the offense of reckless endangerment if he “recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.”
The appellant‘s conviction for the offense of attempted manslaughter is reversed and the cause is remanded to the trial court.
REVERSED AND REMANDED.
All the Judges concur.